The case of SM (Algeria) v Entry Clearance Officer [2018] UKSC 9 mainly revolved around the question of whether a child adopted abroad, where the adoption is not recognised by an EU member state, could be considered a “family member” under the EEA Regulations 2006. The Supreme Court has referred the case to the Court of Justice of the European Union for a preliminary ruling on that question.

While we must now wait for the EU court’s response for a definitive answer, the judgment we do have raises interesting points about family members under EEA law, as well as the links between European law, the rules on adoption and the need to protect the best interests of children.

Background: kafala guardianship not recognised as legal adoption

The appellant, who the Supreme Court called “Susana”, is a seven-year-old Algerian girl. In 2011 she was placed in the legal custody of Mr and Mrs M, French citizens lawfully residing in the UK. They became Susana’s legal guardians under the “kafala” or “kefalah” system, the Islamic equivalent to an adoption.

In May 2012, Mr and Mrs M applied on behalf of Susana for entry clearance to the UK as the adopted child of an EEA national. The application was refused mainly because guardianship under the kafala system is not recognised as an adoption in UK law. Fast forward five years, and the case was with the Supreme Court.

The court had to decide whether Susana, whose adoption was not recognised in UK law, could be granted entry clearance to the UK under EU law as a family member of an EEA national. But first it had to work out whether it had jurisdiction to hear the appeal in the first place.

The right to appeal in the first place

Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755, also known as MK Pakistan, established that extended family members of EEA nationals have a right of appeal for applications made under the EEA Regulations 2006. The Supreme Court confirmed that this case, which overturned the notorious Sala decision, was “clearly correct”.

And garlic has now been scattered on the grave of the dead Sala decision. What was the tribunal thinking in that case? https://t.co/reKGTVavNQ

— Colin Yeo (@ColinYeo1) February 14, 2018

As a potential extended family member, Susana did enjoy a right of appeal against the decision of the Secretary of State to refuse her entry clearance. The Supreme Court did, therefore, have jurisdiction.

Of course, MK Pakistan only resolved the question for applications made under the EEA Regulations 2006. Since then, the EEA Regulations 2016 have come in force, and they explicitly restrict the appeal rights of extended family members. The Supreme Court did not comment on whether that is lawful.

Did Susana qualify as a family member under EU law?

The EEA Regulations 2006 transpose into UK law Council Directive 2004/38/EC, the Citizens Directive, which deals with the free movement right of EU citizens and their family members.

Extended family member

Under Article 2.2(c) of the Citizens Directive, “direct” family members include “the direct descendants who are under the age of 21”. Article 3 defines others who do not qualify as family members within article 2.2 but can still benefit from the directive. These include:

any other family members, irrespective of their nationality, not falling under the definition in point 2 of article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen.

The court thought that Susana was at least one of these Article 3 extended family members, despite the EEA Regulations wrongly trying to require her to be a “relative”. The Citizens Directive makes no mention of “relatives”, using the term “family members” instead. As Lady Hale said:

“Family member” is a wider term than “relative” as it is well capable of including people who are not related by consanguinity or affinity”.

Susana was no doubt an extended family member, being a dependant and a member of Mr and Mrs M’s household in Algeria, the country where she would come from.

Direct family member

But could Susana also be a “direct descendant”? In that case, she would have automatic rights to enter and reside.

The Supreme Court said that it could not answer that question conclusively, but there were reasons to believe that she could. These included the concern that some member states may recognise Kafala children as direct descendants, but others not, which would place barriers to free movement for European citizens with such children. In addition, an official guidance note on the Citizens Directive states that “direct relatives in the descending and ascending lines extends to adoptive relationships or minors in custody of a permanent legal guardian”.

Adoption and the need to protect the best interests of children

On the other hand, the court was concerned that if children such as Susana — that is children whose adoption is not recognised domestically by member states — could be considered family members, this could create opportunities for exploitation, abuse and trafficking.

The UK’s domestic rules on entry clearance for children adopted by British or settled persons are quite complex, and you can read more about them in this post. The main objective of these rules are, in Lady Hale’s words,

(i) to ensure, so far as possible, that such adoptions are in the best interests of the children concerned and attended by safeguards equivalent to those in UK law;

(ii) to protect such children from the risk of exploitation, abuse and trafficking; and (iii) to ensure that the rights of the birth family are protected.

If European citizens can bypass those rules, what systems are there to protect children from exploitation, protect their best interests, and ensure the rights of the birth family are protected? Were article 27 of the directive (which provide that member states may restrict freedom of movement on grounds of public policy, public security or public health) and article 35 (allowing member states to adopt measures to refuse rights in case of abuse of rights or fraud) enough to do so?

These musings led the Supreme Courts to refer three questions to the CJEU for a preliminary ruling:

1. Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under “kefalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant” within the meaning of article 2.2(c) of Directive 2004/38?
2. Can other provisions in the Directive, in particular articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?
3. Is a member state entitled to inquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under article 2.2(c), into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?

These are welcome questions; it is of course fundamental to prevent the exploitation, abuse and trafficking of children. But the case must not result in excessive investigations by member states which end up preventing EU nationals from living with their adopted children. The power to prevent abuse of rights has been used somewhat over-zealously by the UK in routinely scrutinising marriages, to ensure they are not “of convenience”. That has resulted in miscarriages of justice, as happened to the genuine couple in the case of Molina, to give but one example. We would not want adoptions to go the same way.